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tv   Politics Public Policy Today  CSPAN  January 14, 2015 3:00pm-5:01pm EST

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american history tv on c-span3. next the supreme court hears oral argument in young versus united parcel service a case on employer accommodations for pregnant employees. peggy young is a former u.p.s. driver who was denied a light-dult assignment during her pregnancy. she took extended unpaid leave and lost her employer medical coverage. after giving birth she sued under the 1978 pregnancy discrimination act. this is an hour. >> we'll hear argument 121226 young versus united parcel service. mr. bagenstos >> may it please the court, if peggy young had sought accommodation for a 20-pound lifting restriction that resulted from any number of conditions, whether acquired on or off the job, the summary judgment record reflects u.p.s. would have granted that accommodation. but because peggy young's 20-pound lifting restriction
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resulted from her pregnancy and not from one of those conditions, u.p.s. rejected her request. that we submit is a violation of the second clause of the pda, which if it means anything, must mean that when an employee seeks an accommodation or benefit due to her pregnancy, that she is entitled to the same accommodation that her employer would have given her. >> you make it sound as if the only condition that was not accommodated was lifting restriction because of pregnancy. and i did not understand that to be the case. that's the way you start, you want to say it's only pregnancy. unless i've missed something. >> well i -- so i think on the summary judgment record here, your honor, the three very broad classes of limitations that u.p.s. accommodates do at least there's a genuine issue of material fact this they cover the waterfront of everything but pregnancy. but our position is that those three broad classes by themselves, even if there are some conditions out there that they don't cover --
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>> sorry. >> well, i think that's a necessary starting point for your case. it seems to me you started out by really giving a misimpression. >> your honor, i would submit that's not right. i would submit on this summary judgment record, u.p.s. acknowledges that they provide accommodations to people with on-the-job injuries. but also the summary judgment record shows that u.p.s. provides accommodations to drivers with off-the-job injuries that result in d.o.t. disqualifications. u.p.s. has not been able to point to a single driver who had a lifting restriction who was not pregnant. >> what would your case be -- let's accept for argument's sake that there's a category, people who are injured off-duty, who do not get light work assignments. so, you point to the three large categories that do, but let's suppose one category doesn't. >> yes. so in that case our position would be as the statute
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demands, that the employer would be required to treat the pregnant plaintiff the same as those classes of employees who get accommodations -- >> favored nations treatment. it doesn't sister to be read that way. it could be read that way.-rñ@z it could also mean that if you give it to employees generally, you have to give it to pregnant employees. although there may be special classes. i think we had an example about, you know if you have your senior employees driven to work, when they are unable to drive themselves, you have to do the same for pregnant women. would you say that that's the case? >> no, we would not say that. we would not say that because our position is that the stature text requires that employers proid provide workers who are disabled by pregnancy the same treatment they would receive if they, themselves, had similar --
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had a condition with a similar effect on the ability to work but had a different source. so what the statute prohibits is discrimination based on the source of the work place limitation. not based on seniority, not placed on position within the company. >> suppose, i mean -- >> mr. breyer. >> yeah. >> suppose, i mean, we have a brief that you've seen from the truck drivers and they say they don't give many of these benefits to anybody. and suppose they do give a benefit to a truck driver who has driven over a particularly difficult mountain pass, you know, or gotten himself in some danger. now, the harm -- or the disability is lifting, precisely the same. it's just that the source was different. you see, this came from taking a -- some truck that -- doing something special with it. and again, it's a most favored nation problem. i don't know that source gets you out of it. what do you say about that?v]6hr
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>> i think as to that, the important point is, that is an example of what may be an idiosyncratic thing by an employer to provide an accommodation to a particular employee. >> i don't know that it's idiosyncratic. because i don't know all the workplaces and i can't imagine employers have all kinds of different rules for different kinds of jobs. and are you saying as long as there's one job in respect to which, let's say they give them benefits of $1,000 a week, when you're hurt on this job, but not on others, then you have to give them to all pregnant women who hold differ%1jq jobs. now, i think the answer to that must be no but the problem for that and for you is how do you distinguish your situation from that? >> right. and i think actually what justice scalia's question to me a minute ago actually contains the seeds of the answer to that. so it seems to me, i might agree that an employer that provides a
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particularly good deal to a single nonpregnant employee doesn't set -- >> single? there's a class of people -- >> right. but when you have an employer that provides to a large class, to its employees generally, to many of its employees, this accommodated work treatment -- >> i see that that now -- the other question i have, and it's the only other one, is that it did seem to me there is a way, given your theory, a quite easy way for you to win. disparate impact claim. and that's what i thought disparate impact claims were but you didn't bring the disparate impact claim. and therefore, what am i to do? because i don't know that you want to twist the disparate intent claim out of shape when you have such a beautiful vehicle to bring a claim of the kind you just articulated.
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>> i think the vehicle to bring the claim of the kind that i articulated is the second clause of the pda. the second clause of the pda says that women affected by pregnancy, childbirth or related conditions should be treated the same as other persons not so effected but similar in their ability or inability to work. >> but you read that as an accommodation provision, basically. and maybe it is. but let me ask you this question, which goes to the uk9֖ issue of whether the types of accommodations that you would say are required have to meet some reasonableness standard. let's say there are two categories of employees who have lifting restrictions in their job descriptions. one consists of people who work alone, and they lift all the time. a driver who is driving a truck by herself and has to lift heavy packages all the time would fall into that category. the second category would consist of people who lift more
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occasionally, and they do it in a place where there will always be lots of other employees in the same class available to do the lifting. now, if an accommodation is provided to the workers in the second category, would you say that one must also be provided to workers in the first? >> no, i don't think so. so our point is precisely that a driver who is pregnant and has a limitation related to her pregnancy, is entitled to the same accommodation her employer would have given her if she had sought it for a different medical condition with the same effect -- >> why doesn't that second class fit within your reading of the statutory text? >> because in our view, the statutory text, by drawing this distinction between employees affected by pregnancy, childbirth and related medical conditions and that the employers can't draw that distinction, they instead look at only the ability to work, what it does is prohibits discrimination based on the source of the disabling condition, not on different job classifications.
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if you have a driver -- if an employer says no driver who drives alone is going to get an accommodation whether for an on-the-job injury a d.o.t. disqualifying injury or pregnancy, that's fine because it's the same treatment. justice scalia, we do not read this statute as an independent reasonable accommodation -- >> why then -- i guess i'm not quite understanding why you can get the source classifications into a different category from all other classifications. so explain that to me. >> i think it goes to the statutory text. the statutory text says, women affected by pregnancy, childbirth or related medical conditions shall be treated the same as others not so effected with the same inability to work. what it is saying to an employer, don't consider whether this person is affected by pregnancy or not so affected. that's not the basis on which you can compare this employee to other employees. instead compare this employee based on the ability to work.nj.ìáhp &hc% remember, this stature text was adopted in response to general
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electric v. gilbert which upheld an employer policy which distinguished based on the source of the disabling condition. treated some kinds of disabling conditions differently from pregnancy reeld -- >> you admitted that other persons can't be read literally. you have to read things into it. and you would read into it people in the same job classification. but if you can do that, then why can't you also read into it people whose injuries -- whose disabilities have the same source? >> because once you do that, then the second clause of the pda doesn't occupy any space. and then congress should have stopped with the first clause. congress was doing something with the second clause. it was trying to overturn the gilbert situation, where you had an employer that adopted a policy that as a formal matter treated pregnant people the same way as it treated nonpregnant people. if you were pregnant but the reason you weren't able to work was an off-the-job injury or
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illness, the general electric v. gilbert would have given you disability benefits. the gilbert case was, that's not discrimination, it simply doesn't include coverage for pregnancy, but pregnant women aren't fenced off. what this statutory text does, it says, no employers have to treat pregnancy-related conditions as favorably as they treat nonpregnancy related conditions. that's in fact how this court has read the statute since its very first pda case. newport news says, this act makes clear it's discriminatory to treat pregnancy related conditions less favorably than other medical conditions. u.p.s. with the three very large classes of employees that it provides accommodations to that are not pregnant is treating pregnancy related conditions less favorably than other -- >> you do assert, it's a most favored nation provision. you have to give the benefits that you give to any other class of employees, right? >> to any other class of employees. i think that -- >> it doesn't matter whether that class is enormous or small, right?
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>> so i think this is text that obviously requires some degree of interpretation. i think i think, your honor articulated one way of thinking about it, providing this accommodation or benefit to employees generally. and certainly when an employer provides accommodations or benefits to such large classes of employees, who are not pregnant -- >> does the record show what you have asserted here? that the classes that are given special treatment is almost everybody? >> i think that we have -- >> does the record show that? >> i think the record is sufficient to show that. remember summary judgment was granted against us. >> i understand. >> yes. so i think the record is sufficient to show that in the following sense. so number one, obviously there's all the on-the-job injuries which u.p.s. acknowledges they provide accommodations for. number two, d.o.t. disqualifying conditions that u.p.s. provides accommodated work for, we have presented examples in the record of individuals who have off-the-job injuries who are similar in their ability to work as peggy young who have been
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given accommodated work, and u.p.s. hasn't pointed to in its briefing here any driver with a similar lifting restriction of peggy young who was not pregnant who -- >> you can win your case with that argument, perhaps. >> i hope so, yes. >> assume that. but that isn't going to help me. which i'm rather selfish about. because my job here is to write what this statute means for a lot of cases. and writing the words, what it means is, if you give a lot of benefits to a lot of employees, 6gh but not to the pregnant women, and you don't give it to some employees, and not to the pregnant women, and the employer says, look, pregnant women are like the few we don't give it to, not to the lot that we do give it to, employer, you lose. by the time i've written that into the u.s. code, nobody knows what i'm talking about. do you understand?
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i need to know how to interpret the words such that they would do, in your view, what you want them to do, which is, just what i said. >> yes. i think the important point is, if an employer provides accommodations, as a matter of policy, to a class of employees who are not pregnant, who are similar in their ability or inability to work to the pregnant plaintiff, and does not provide the same accommodation or benefit to the pregnant plaintiff, it is violating the plain text of the statute that says women protected by -- >> most favored nations. so, you're coming down to most favored nations. and that makes sense. my colleague cannp write that down in piz his opinion. >> but unfortunately it takes out what you just said the fact that you give it to a lot of employees. you could have a most favored nation that was two employees. >> that's right. >> including those who have only worked there for 40 years. that's a huge seniority. those are the words that i'm -- >> i understand.
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i understand. and that's why i think this may be an easier -- >> basically what you're saying if i understand it, is it's okay to differentiate7 anything by the way but source, which means whether it's work or nonwork related. you're reading out of the -- just say the history, the fact that congress repeatedly said, we're not forcing employers to give benefits for nonwork related injuries, but we're going to write it so that they have to anyway. >> i don't think there's any statement in the legislative history that says we're not forcing employers to give benefits for nonwork related injuries. there are three statements in the legislative history that respondent draws a negative inference from. >> i'm so relieved. >> drawing a negative inference to say, obviously congress +o didn't mean to do that, but to return to justice scalia's response there, the text contains no such limitation. on-the-job, or off-the-job restrictions were certainly known to congress at the time it adopted this statute.
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in fact, general electric-gilbert had an on-the-job and off-the-job although the flip side in this case. if quong meant to say that employers have an exception from the general shall be treated the same requirement for an on-the-job/off-the-job distinction, they should have done so. i reserve the balance of my time. >> certainly. >> thank you. >> mr. verrilli. >> mr. chief justice, and may it please the court, the point of the pregnancy discrimination act is to reduce the number of women who are driven from the workforce or forced to go months without an income as a result of being pregnant. the÷m
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advances that in a narrow way. i say it is narrow because it is not a free-standing accommodation requirement like the religious provision of title 7 or like the ada. i say it is narrow because there's only one thing that an employer can't do when it affords benefits or accommodations. it can't draw distinctions that treat pregnancy related medical conditions worse than other conditions with comparable effects on ability to work. >> what was the other one? >> the government took in the u.s. postal service policy, we are told that the government defended a policy, for all intents and purposes is the same as united parcel service. more than that, some briefs called the petitioner's position frivolous, contrived. that was the government's position. so will you explain how the government -- i suppose to this day, because the postal service still retains, as far as we know, the exclusion of pregnant
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women. >> of course, justice ginsburg. it is correct that the department of justice defended the postal service practices against charges like those of miss young makes in in case. that's correct. we acknowledge that in footnote 2 in our brief to this court.ípfñf(z since then, however, the eeoc has issued guidance, and that's a very significant fact, congress has charged the eeoc with authority to interpret the statute, and with an authority to enforce it.w k6ìáhp &hc% >> i thought we felt that we don't give deaference to the eeoc. >> you don't give chevron deference to the eeoc, but -- what do you call the deference? i mean, gee, you give that to me, even when i'm -- even when i'm in dissent. i mean, that just means, you know, treat it for what it's worth. >> the eeoc sets the enforcement policy for the federal sector with respect to this issue. that's a significant fact. we took it into consideration.
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in deciding what the position of the united states should be. >> would your position here be the same if the 2014 guideline had not been adopted? >> we didn't take that position before the 2014 guideline had been adopted, justice kennedy.> with respect to this, i think the court has to decide what the best reading of the statute is -- >> the best reading. >> that's correct. if i could turn to that. hopefully in doing so, i hope i can answer your questions. jutd justice scalia and justice
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alito. here's why we any the statutory text -- maybe it would help if i restated what i think the rule is and explain where the tex actual basis comes from. we think one thing the employer can't do as a result of the seconds clause is draw distinctions that treat pregnancy related medical conditions worse than other conditions with comparable effects on ability to work. it's that single thing. so seniority, full-time work, different job classifications, all of those things would be permissible distinctions for an employer to make, to differentiate them on who gets benefits. now as for the textual basis, i'm looking at the statute here which is -- we've got it page 12 and 13 of our brief and it's also in the last page of the appendix to the petition. it says that -- what it says is that among the class of people who are comparable in their ability to work in other words similar in their ability or inability to work as the statute says, women with a pregnancy-related medical condition, in other words, women affected by pregnancy, childbirth or related medical condition, as the statute says,
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can't be treated worse on the basis of their condition. that's what we think treated the same means in the statute. then other workers with nonpregnancy related medical conditions that impose comparable limitations. those are other persons not so effected. >> would you give me your interpolation again sdm you altered the phrase. and the words you added were -- >> on the basis of their condition. and the reason we think that's the sensible and best reading of the statutory text is because this is focused on the condition and not the person. >> but you start -- at the very beginning, you listed three things that you said were ñ% because the word i'd like you to focus on is other workers. and the problem is, which other workers? because it is easy to construct hypothetical cases where the employer treats some other
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workers the same as the statute, and doesn't others.5uñ and which distinctions are reasonable and which ones are not, and how do we tell? >> i'd like to make two points the first about the nature of title 7 claim and the second about the nature of this kind of an anti-discrimination provision. bsaafje
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mountain, for example, i think you would have two issues there. first, when it's one person, you're not going to be able to make a direct case. you go through mcdonald douglas and the employer may well have an explanation for that accommodation that would take it outside the source of the disability limitation, and mean there's no liability. and then with respect to that example, there's a second point to be made, i think, which is that that person who has to drive the particularly dangerous route may be in a different job category, therefore, not in similar ability or -- >> i would have thought those types of cases, the idiosyncratic one, well, he's doing this, yes, but he's doing that. and then the pregnant woman comes in and says, that's not the same thing. i thought it was sort of the isolated examples that would be particularly glaring in their discriminatory -- >> well, mr. chief justice what i would say about that is you can certainly bring a mcdonald douglas claim against the
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idiosyncratic difference. but if the employer can show it was granted not on the basis of a cry tear yan that the sentence in the pda would forbid, then the accommodation is fine. there's no violation. to get back to the point -- >> i use the idiosyncratic example not because i'm interested in it, because i think it illustrates something that isn't idiosyncratic. and what i use it to illustrate is the fact that as here, employers will have classes of people, and the classes may be based on all kinds of different things. but this is a case where there are classes. and some get the benefits equivalent to the pregnancy, and some don't. and how are we supposed to tell which are the criteria that are consistent with the statute, and which are not? that's what i found as the difficult question in the case. and that's why i ask it using
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the idiosyncratic, simply to illustrate what i think is the problem. >> of course. let me get to the second point i wanted to make in response to your question and then i'll try after i do that to give you a very specific response to what you just asked me. the second point is, it's true that some classes are going to be in and some classes are going to be out. but that's how discrimination law operates. if an employer is discriminating against women in promotions, the fact the employer is also discriminating against overweight men in promotions, doesn't make the discrimination against women any less actionable because it just reflects the choice congress made about whom to protect and here the choice congress made by whom to protect and whom not to protect is the choice to protect women who have condition -- pregnancy related medical conditions. that's the congressional judgment here. they didn't choose to protect everybody who gets injured off the job. they chose to protect those with pregnancy related -- >> suppose the employer has a
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rule -- if you have a disability outside of employment, give you benefits for one month. and it applies that same policy to the pregnant woman, is that a violation -- >> i think the pregnant woman would be entitled to the one month, but nothing more than. >> but nothing less. >> that's correct. >> why isn't that a discrimination on the basis --$xbu >> the statute requires people be treated the same. so she would be -- the pregnant employee would be treated the same under those circumstances. >> but not if there is a separate category of people who are entitled to benefits for more than one month. >> the question would be whether those benefits -- whether the distinction -- whether the disentitlement of the pregnant employee was based on the source of her condition, namely, pregnancy. if it's based on something else like seniority or full-time status, then, of course -- >> would you please answer my question which do you mean source means on the job or off the job? is that what this case revolves around?
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because i don't know -- >> briefly, yes. >> briefly, mr. chief justice. i think that on the job versus off the job, that distinction goes to -- inevitably goes to the source of the impartd. and, of course pregnancy will never qualify under that standard. but this case is not just on the job versus off the job. it's on the job versus off the job plus the d.o.t. certification category which could include people their d.o.t. certification and can't drive because of physical conditions other than pregnancy that prevent them from doing the include lifting. the d.o.t. manual, which the petitioner cites at pages 6 and 7 says exactly that. thank you. >> thank you. >> miss halligan? >> mr. chief justice and may it please the court justice breyer, you are exactly correct. had petitioner believed that the
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policy that u.p.s. applied, which was to provide accommodations to employees who are injured on the job but not provide accommodations to any employees who sustain a condition incurred off the job, she could have brought a disparate impact claim. we believe she would not have succeeded. but she could have and she did not. she attempted to bring one late in the day. it was dismissed by the district court because it had not been exhausted. >> miss halligan can we talk about the claim she did bring? >> yes. >> you are reading the statute. it basically makes everything ( z after the semicolon completely superfluous. and i think you would agree with that >> absolutely not, your honor. the reading we propose is very straightforward. what congress said in the second clause, the key words are the same as other persons. what other means is simply distinct from whatever is mentioned first. so employers have to treat pregnant employees the same as some distinct group of nonpregnant employees that are similar in their ability or inability to work. and that's exactly what u.p.s.'s policy does.
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>> that is what the first provision does, when it says pregnancy is the same as sex, because when we say because of sex, when we say because of sex, we also say because of pregnancy, all of that would be taken care of by that clause. "i >> this court explained in mof newport news7tfs as well as in cal fed, the function of the second class is=,y principles apply to pregnancy. the reason they had to do that is in order to repudiate -- >> so you are saying it's not doing anything new. it's only 9 stuff. okay, tell me why that -- >> i'm not saying that, your honor. what i'm saying is that in a pregnancy discrimination !s case instead of comparing women with men, as you would in a typical sex discrimination case, because what the first clause does is bolt pregnancy onto sex discrimination. if you compare women and men in a pregnancy discrimination case where you have a policy that
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facially discriminates, against pregnancy, you will nonetheless conclude there is not sex discrimination because there will be women who are pregnant in the disfavored group but there will also be women not pregnant in the favored group, among men.l3 k?u >> i think, again, that's not necessary. all the inquiry would be, were you discriminated against because you were pregnant. yes, i was. do, i wasn't. you don't need any of this other stuff about what thñn and in fact, you're creating a kind of double redundancy. it's everything pastx%6ño#"oñ semicolon is redundant, but then moreover, the key words here, which is other persons not so effected but similar in their ability or inability to work. that become redundant even within the redundancy. >> i'll respond to the last point first, and then the first. what petitioner's interpretation and the government's interpretation would do is to actually rewrite those words in one of two ways. initially petitioners seem to be suggesting that if a plaintiff
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could identify any other single employee who was accommodated, $9 that the pregnant employee would be entitled to the same accommodation. what that would mean is the statute would have to read, the same as any other person. it does not. now petitioner and the government are both suggesting that the only restriction that this bars is a restriction based on source. any other restriction, rank, srlt seniority, outside legal obligations are sebl. but it doesn't contain any of those words. >> that is the question that this language raises, right? why source but why not a seniority limitation or something like that?(ch so could i give you an alternative way to understand what the statute is doing? which is that -- what we ought to be thinking about is mcdonl douglas. in other words, this -- it provides the comparative. it says an employee can find a class of people who are being
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given an accommodation, notwithstanding that those people are similarly situated with respect to work. an employee points to that class. and then in a typical mcdonnell douglas fashion the employer comes back and says, no there's a good reason why i'm treating that class differently. that has nothing to do with pregnancy. it has something to do with, i always treat more senior employees differently. or something like that. at that point, if the employer makes his case, the employee gets to come back and say, no, that's pretext. and just the way we do with xb every other discrimination case. and that's w.m kdwkráhp&l about. it's identifying the compare coparitor that the employee has to identify in7q the first instance in order to shift the burden to the government to come back with a reason. >> i think the second clause is highly relevant to the question of comparatives. but not in the way you're suggesting.
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what the second clause does, as this court has laid out in newport news and in cal fed s to explain that when you are making those comparisons that you don't look at women and men which is what you might do as this court did in gilbert because it's sex discrimination that you are actually -- >> that's the first clause. but instead of talking in the abstract, do you give me any example of a case that a plaintiff would lose under the first clause? >> i'm not -- >> putting pregnancy together with sex. >> i'm not sure that you could. but that wasn't the function of >> then you are saying, second clause adds nothing, even though congress said "and." it includes pregnancy, and something in addition. but you're saying it's not really in addition. >> i think that grammatical connector is very important for the following reason.
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petitioner's construction would read the first clause out of the statute entirely. the words in the first clause are "because of." and this court has consistently understood those words across protective trades to require that discrimination in an intentional discrimination case, that you have discrimination that is actually motivated by the protected trade. if the second clause does the work petitioners suggest, even if you could find the word source in that, which it's not in the text, it would mean that you don't need to show that the protected trait pregnancy actually motivated the adverse treatment. so his construction would read that out of the statute entirely. >> ms. halligan, what's wrong with my middle ground? it's not that mr. bagenstos and the general's ground. they can come back and say i have a legitimate policy based on seniority or even i have legitimate policy based on the source of the injury. but it does put that as a question. whenever an employee is able to
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point to a similar -- to a class of people who are granted the disability accommodation, who aren't pregnant. >> i just don't think it has any anchor in the worth of the statute itself. the words are -- >> it's quite the opposite. it basically gives a function for what the key words of the statute are other persons not -- or not so affected, but similar in their ability and inability to work. what is that doing? what it does is, it points to the compareator that forces the employee to come back and say give a reason as to why this ought not be taken as discrimination against pregnancy. >> i think this court's been clear that the function of the second clause was to repudiate that logic which equates when you look at men and women, when have a pregnancy clause that discriminates on the basis of appreciation you say, that's not sex discrimination.
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it said so in ratheon. justice stephen son's dissent in gilbert, which this court said it was codifying -- >> the language after the semicolon were not there, would the language before the semikol colon have effectively overruled gilbert? >> it would have overruled gilbert by bolting pregnancy on. but congress -- >> would it have resulted in a different result in gilbert? suppose the employer has a policy of providing certain benefits forh ñ employees who have an injury or a disease but not pregnancy. >> right. >> you didn't have the language after the semicolon, would the language would br the semicolon have required the employer to treat pregnant women the same as those who have an illness or injury? >> i'm not sure it would have.
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i'm not sure it would have precluded the court from using the same logic that was at play in gilbert itself. and that's why those words are there. >> so the reason for the language after the semicolon because have you to go further in order to produce a different result in gilbert. if that's correct, can you explain what you think the language after the semicolon means? >> i think the language after the semicolon instructs that when you look at a policy that discriminates on the basis of pregnancy, what you would do in a pregnancy discrimination case is look at how men and women are treated. if they are treated differently you would conclude that there is sex discrimination. what this clause instructs is when you look at a policy that discriminates on the basis of pregnancy, rather than looking at women and men, which will lead to you the conclusion that there's no sex discrimination, because all the nonpregnant women are -- >> that's what the first clause does. it says, pregnancy is sex, period.
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you will have already said that you don't think that the second clause does any practical work. that s you can't conceive of a case where a plaintiff would lose under clause one and win under clause two. >> well, to be clear, your honor, the reason the second clause is there is to avoid a case in which a court uses the same reasoning and reaches a different result. this court also attached special had significance in second clause in johnson controls. it provides a bfq for pregnancy spebl specifically. that's a distinction that is long standing. that's a distinction that is longstanding and has -- >> but you don't know where -- i'd like just to go back on this very point to which justice kagan said. now, the mcdonald douglas test,
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i think, should come in somewhere. that is, the womenan shows that i'm pregnant. couldn't lift. i wasn't paid anything. and of the people who had comparable inabilities, were paid. and so we get to was i qualified like they are? and now a distinction is being made. the employer says no you're not because you didn't drive over the mountain pass or, no you're not because you nodded off the job. and then we have to decide is that a pretext? is it legitimate? and were they giving it to everybody else and there are very few, it doesn't sound too legitimate. but that test must come in. >> it does. >> and so how does it? and does it matter if we put it under the first so-called -- whatever, you know intentional
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as opposed to disperate impact? where we muck up the law? were we to say it goes in that part rather than the other part or both parts? >> well i think if i can this court has been clear that mcdonald douglas provides a mechanism for providing indirect evidence of desperate treatment, of intentional discrimination. it's distinct from a dispara temperaturete impact case where, as here, you have a facially neutral policy. a policy that says on-the-job gets accommodation when they can't perform the essential functions of their job. anyone with a injury or condition that sustained off the job doesn't. when you have a neutral policy like that, can you bring a disparate clause -- >> why not if it goes under kai!ñ disperate treatment? of course, the employer will always have a facially neutral policy. it just turns out that this facially neutral policy happens
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to hit the pregnant women and four other people. >> if -- >> i mean, that's kind of thing that we're trying to stop in this statute. so why not bring it in there in the disperate treatment part, as you say. >> two answers, your honor. i think the distinction between disparate treatment where you're looking at the adverse effects on a certain class of employees but you have a facially neutral policy has been -- is distinct from a policy that discriminates on its face. >> suppose i -- that's exactly what justice breyer is talking about. suppose you had a policy that said we're going to provide accommodations for anybody with a non-occupational sickness and accident. very similar to gilbert, but without all the other facts of gilbert.
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we're just -- it's a facial policy we're going to provide accommodations but, of course pregnancy is not a nonoccupational sickness and accident. so as a result of this facially neutral policy pregnant women will not get accommodations. now, as i understand what you are saying, it's -- that's perfectly fine. >> if a policy distinguishes between occupational injuries and nonoccupational -- >> yes this is nonoccupational sickness and accident. >> that would be acceptable. and what a plaintiff who believed that nonetheless there was intentional discrimination what they would do is they would, under mcdonaldh2(c÷ they would first of çç& to make a prima fascia case by showing that other employees who were treated different mrip the comparators that the petitioner points to here are not valid because -- >> you're departing radically from the fourth circuit view.
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the fourth circuit said right up front that this clause loan is unambiguous. if a group of employees get the benefit, if other employees get the benefit so muchgb k4v÷1j pregnant women. the fourth circuit says yeah, ita!"óma would lead to untward results, preferential treatment. we're not going to give it that meaning. >> the fourth circuit realized that the two clauses have to be read together. and, in fact, to read the second clause as petitioners suggest just read it out of -- justice kagan, to back to your question what an employee could do in that circumstance is to say the policy doesn't treat similarly situated employees the same as me. it treats me worse. the comparators here were not at all congruous. the first set were individuals who were accommodated under the ada. the government realizes that
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they're not similar. >> that's where we disagree. because what this tells you is are. the comparators are any class you can come up with who is -- has the same disability and isn't pregnant. and then, the employer can come back and say, no we had a good reason to treat that class of employees differently. and if you buy that with respect to the gilbert distinction, i don't understand why you wouldn't buy it with respect to any other classification. >> because all the second clause is telling you, and congress was clear and this court was clear, that the pda of both clauses in its entirety were not intended in any way to depart from traditional title 7 principles. it was simply to correct the fact that pregnancy discrimination could be sex discrimination. >> we absolutely know what gilbert was said was that kind of policy was legitimate. and that congress came back and said no, that kind of policy is
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illegitimate. right? >> it said two things, it's illegitimate in the first clause and it said you cannot when you are trying to ascertain if there's sex discrimination with a pregnancy policy break it down into women and men. because you won't get the result congress wants. congress says when it's facially discriminatory on the basis of pregnancy, that's sex discrimination. the comparators do have to be different. you're correct. it's pregnant employees and nonpregnant employees. >> as i understand the answer to my question, and tell me if i'm wrong, is you're saying with respect to a facially neutral policy, as to nonoccupational sickness and health that you think that that is illegal under the pda? >> no, it's legal under the pda. a policy that -- >> i'm sorry. >> a policy that distinguishes between occupational and nonoccupational injuries and is evenly applied is absolutely permissible under the pda. >> even if it's -- it's exactly the policy that's in gilbert. and you're saying that's fine? >> no.
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the policy in gilbert singled out pregnancy -- >> no it didn't. there were a lot of other things that got exklutecluded in gilbert. if a man had a vasectomy, it got excluded in gilbert. if somebody got into a bar fight, it got excluded in gilbert. if a person got cosmetic surgery, it got excluded under the policy in gilbert. gilbert was about much more than singling out. >> this court clearly described the policy in gilbert as singling out pregnant. >> it enacted it to overturn gilbert. everybody -- >> it's -- >> not from some abstract theory, but the result in gilbert. and as justice kagan pointed out, gilbert was a case where you could point to a lot of other people who were not getting this benefit. >> one of the -- the result that petitioner and the government suggests, which is instead to say that you can have any tis tikz you want and it's
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permissible on the job versus on the job versus off the job s far more con torted. that's in workers' compensation law. >> is it true, essentially, that you said that young's position is most favored nation. yours is least favored nation.d!n >> it's not least favored nation. the question is, is there another distinct group of employees who are treated the same as the petitioner. and here there are. >> this indicate went off on summary judgment so the fablgt fact -- mr. bagenstos has told us that there is not in this record a single instance of anyone who needed a lifting dispensation who didn't get it, except for pregnant people. and if that'sihp÷ the case in fact, then you lose, don't you? >> well, i would like to address that because i think that's a real mischaracterization of the record in a couple of ways. first of all, the district court held squarely that the effort by plaintiff to characterize this
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policy as no light duty for pregnancy was wrong. what the district court said -- this is at page 59-a, the actual on-the-job was ada accommodations -- >> but do we know, in fact, this is an allegation that, in fact, no one who wanted a dispensation didn't get it except pregnant women. >> that is also contradicted, your honor. >> we're on a summary judgment stage, so we don't know what the facts are. >> but we have to look at the uncontroverted evidence. there is uncontroverted testimony in the record and i would point to you mr. martin and mr. brian's testimony there were many employees who sustained off-the-job injuries. and the district court held specifically that no light duty was given to any employees, male or female, with any medical conditions not related to work, pregnancy included. page 56-a. >> give an example, then. is there an employee who asked for dispensation because of a medical condition that
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restricted her ability to lift? to any single employee but employer said, sorry you don't get it because your injury was off duty. >> there's not a name provided in the record because one was not elicited by the petitioner whose burden it was in building a prima fascia case. but the record evidence was undisputed there are many employees who sustained off-the-job injuries. it's surprising. u.p.s. is in the business of delivering -- >> they suffered off-the-job injuries but we don't know if they asked for dispensation because off-the-jobgjf0ñ injury required that they limit the weight that they could bear. >> the district court held that u.p.s.'s policy is that employees who are unable to perform the essential functions of their job would be required to take leave if their inabilities stem from something off the job. and in a business that involves : moving 70-pound packages around all day long, it is certainly
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the case, as the uncontroverted testimony established, there were many employees who sustained an off-the-job injury that prevented them from doing that job. >> i assume that you disagree with the petitioner's petitioner's proposition that when you take these three classes -- namely, on the job injuries, ada injuries and -- what was the third one. >> yeah, yeah. disapproved drivers by dot. there is almost nothing left. >> we absolutely disagree with that and there is nothing in the record which suggests that. it is completely without citation or support and it's completely controverted by the testimony there were many employees whoéqzñ did sustain an off-the-job injuries. with three narrow exceptions,
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absolutely, the three that you identify. but every employee that the district held court sustained and off-the-job injury, turned their back hurt their knee whatever it was, couldn't come in to work were not accommodated with the type of light duty -- >> why shouldn't there be a trial on that or furtherr4 u% proceedings? if it turns out that they're right, there were four people who weren't pregnant, and that's all, who didn't get the benefits, that's pretty strong evidence that the employer is discriminating. if there were 400,000 people who got the thing off the job and there were only like 19 people on the job who got the benefit then you have the better case. why don't we have to look at the facts? >> first of all, your honor that would be relevant to a disparate impact claim which the petitioner did not bring. secondly, there was extensionive discovery discovery in this case. summary judgment was granted without uncontroverted evidence that establishes exactly the opposite of what you are suggesting so there is no need to do that. this is a very straightforward
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case and but for the effort by the petitioner to bring the record back into play at this late date none of this would be something that you would ever consider. >> is there really a dispute about this? maybe petition's counsel to address it in rebuttal. is there really a dispute that if a u.p.s. driver fell off his all-terrain vehicle on the weekend and was unable to lift that that person would not be given light duty? is that really -- >> the district court made a square finding exactly to that effect at page 56a and page 35a. i would also direct you in our red brief to page five where we set forth miss martin's testimony that she never authorized an accommodation for anyone who was injured off the job. so that's there as well. i'd like to turn briefly, if i can, to the question of the eeoc guidance that the solicitor general -- >> but there are individuals who are injured offer the job who
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lose their dot licenses? >> there are individuals who>ñp lose their dot certification pursuant to the collective bargaining agreement. they are accommodated forúr period of time. >> but those jobs, those individuals who lose their d.o.t. certification, are not light duty jobs. those are heavy-lifting jobs at district court squarely held. the district court at page 56a and 59a said inside jobs are not light duty jobs and individuals who lose their license can perform any number of demanding physical tasks which miss young could not perform. so they're not comparable in that regard either. with respect to the eeoc guidance, the guidance which was issued two weeks after this court granteder is er isis he she yorery in
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trying to obtain what appropriate conduct was under federal antidiscrimination laws the policy that it still has ind&+yy place today. in addition, the process in issuing that guidance was incredibly rushed. it was not until 2012 as one of the amicus briefs point out that the eeoc even identified the question of pregnancy accommodations as an emerging or developing issue. there was no notice in comment. >> the original guideline as i understand eeoc, what they did in 2014, is that we were -- all we're doing in 2014 is explaining what the original. was it '79? >> >>y 79 guidelines simply mimic the statute. the eeoc said it was looking at addressing the very issue that it opined on in the 2014 guidance as emerging.
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if the 1979 guidelines stood for what petitioner suggests, there would have been no need to treat it as emer/ it would have been settled 30 years ago. finally, i want to point out that this is an area where the democratic process is working as it should and as this court instructed it should in cal fed. in cal fed this court looked at the question of whether or not state statutes which provided preferential treatment to pregnant employees the statute there provided extra leave and reinstatement rights to pregnant employees was preempted by the pda. the court said the pda sets a floor. that floor is that you can't single out pregnancy for adverse%! treatment. states can go beyond that as additional andé4 new challenges are identified. >> well, for the democratic process to work as it should, the pda has to be given a fair reading. what we know about the pda is that it was supposed to be about removing stereotypes of pregnant women as marginal workers. it was supposed to be about
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ensuring that they wouldn't be unfairly excluded from the workplace. what you're saying is that there's a policy that being a dates some workers but puts all pregnant women on one side of the line. and what you'reij& t is that the employer doesn't even have to justify that policy a la mcdonnell douglas. that seems to me a reading of the statute, the pda, that ignores two-thirds of the text. >> i'm not saying that the employer isn't subject to a suit under mcdonnell douglas. i'm saying that there are no valid compare tors here. that's all i'm saying in that id regard. >> essentially is there any group that doesn't get the benefit? a group that non-pregnant. only pregnant people are. any group at all.
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>> the policy that's at issue here justice ginsburg, distinguishes on the job versus off the job injuries. that's a statement that's echoed in state law. that's far from a policy that singlesdsadv> there are only nine states. >> or targeting or otherwise primarily disadvantaging. that distinction tracks what workers comp requires which is payment for employees who are injured on the job and many employers, including the u.s. postal service, found it advantageous to provide light duty accusations so their employees can be at work while they're rehabilitating and provide some productive work for the company. that distinction is as legitimate as you could get. i see my time is up, your honor. >> thank you, counsel.
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>> thank you mr. chief justice. i'd like to begin if i could with the facts. justice alito did ask and yes, we certainly do disagree with u.p.s.' assertion here. this case was on summary judgment and u.p.s. does point correctly to some very general statements in the record by u.p.s. macknagers that they never authorized these accommodations. however we point to specific examples in the record with people with off the job injuries or illnesses who were dot decertified, who were not given accommodations, that's a factual dispute that has to go to trial. >> you really think that you could prove at trial that if somebody is injured in a recreational activity over the weekend, that they get light duty but a pregnant woman does not maybe? >> if someone is injured over the weekend in a way that leads them to be dot decertified, yes. in fact a u.p.s. manager so testified about a sports injury. by cite that in our opening brief. so yes we think so.
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the second point i'd like to make is about what the two clauses today. the first clause of the pda as newsfae( cal fed, overturns the reasoningip9y in general electric v. gilbert. what the first clause says is where gilbert said, look discrimination based on pregnancy isn't sex discrimination because there are pregnant women and non-pregnant persons. that's wrong. instead because of pregnancy is because of sex definitionally. that's not what the second clause does. that's what the first clause does. the second clause as this court said again in newport news and cal fed goes further and overrules the holding. i think justice kagan was exactly correct in describing the facts of gilbert that the gilbert holding would not be overturned under u.p.s.' reading here, because the gilbert policy, the one thing we know that congress meant to say was illegal. the gilbert policy itself acted -- drew lines in pregnancy neutral ways. it said if you have an off the job injury or accident defined
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as an illness defined as an accidental injury, then you get disability benefits. it just so happens pregnancy isn't an illness and pap'cy isn't an accident in the sense of an accidental injury. we know what congress was trying to do because congress said it and this court has said it is to overturn the:m7 but u.p.s.' rule simply reprises the rule at issue in gilbert. if i might return to the point justice breyer's made a couple of times at various points in the argument. >> actually i think the reverse. the second sentence is what does that. the second sentence says you don't worry about whether it's between sexes. you worry about whether the same class of people, people who are injured off duty, are being treated differently. >> well i think -- >> when they have the same ability to work. >> i think justice sotomayor it says you don't have to worry
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about whether they are the same sex or not. >> do you have to worry about it. >> the first clause definitionally defines pregnancy discrimination as sex discrimination. if you are discriminating because of pregnancy, that is because of sex. that's overturning the gilbert reasoning that pregnancy discrimination isn't sex discrimination. the second clause goes further as this court has explained, and overturns the holding overturns the holding upholding the general electric policy. and so i think under u.p.s.' rule, it wouldn't do that. on justice breyer's question, basically how do we deal with a world where there's an imploer that treats two different groups of people who are not pregnant differently. shall be treated are the same is those who get the better deal or those who get the worse deal. right? i think justice ginsburg and justice kagan articulated this well, that their position really would give least favorite nation status to pregnant workers. we know that that can't be something that congress intended. we know that in part because of
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what general verilli said. that's not how discrimination works. we know that because the purpose of this statute to say to employer as justice kagan said you have to treat pregnant workers just as valued employees as anybody else. if you think it is valuable to keep these employees on the job who are injured on the job because they keep valuable knowledge within the company do that for pregnant women. >> thank you, counsel. case is submitted. the house has passed legislation to overturn president obama's immigration actions and remove protections for immigrants brought illegally to the country as children. the measures were part of a $39.7 billion spending bill with the department of homeland security. vote was 236-191. that legislation now goes to the senate and faces a veto threat
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from the president. the house added five amendments to the bill all dealing with immigration. one to nullify the president's executive actions in november passed 237-190. all democrats voted no on the amendment and they were joined by seven republicans. we're taking your comments on republican use of homeland security funding to stop president obama's executive action on immigration. give us your thoughts on facebook at or on twitter using the #c-spanchat. with live coverage of the u.s. house on c-span and the senate on c-span2, here on c-span3 we complement that coverage by showing you the most relevant congressional hearings and public affairs events. then on weekends c-span3 is the home to "american history tv" with programs that tell our nation's story including six unique series. the civil war's 150th anniversary. visiting battlefields and key
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events. american artifacts. touring museums and historic sites to discover what artifacts reveal about america's past. history bookshelf with the best known american history writers. the presidency looking at policies and legacies of our nation's commanders in chief. lectures in history with top college professors delving into america's past. and our new series, "real america," featuring archival government and educational films from the 1930s through the '70s. c-span 3 created by the cable tv industry and funded by your local satellite or cable providing. now americanh!ps university president neil kerwin speaks to students on the lobbying and regulatory process on lobbying strategies. workshop features faculty and professional lobbyists who lecture participants on
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fund-raising, advertising public relations as well as litigation strategies. this runs an hour and 15 minutes. >> -- talking about strategies and tactics of lobbying and one of the most personnelments of lobbying is lobbying the executive branch lobbying rule making. to put this in context, congress passed fewer than 300 bills this last congress. some of them were very important. whereas our next speaker, neil kechlt r kerwin, dean of the school public affairs and was appointed to the faculty in 1975, he'll tell x you in more detail just how important it is to have a strategy of lobbying after a bill is passed. they're general. specificity is put on through the rule making process and we have one of the best people until america to do this. he has the best book in my
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opinion, although thereb1é,are not very many books on this topic, earn titled "rule making -- how government agencies write law and make policies." the founder of the center for the study of rule making and certainly you know about rule making because this president is shifting to rule making executive orders and other actions when he has divided party government. i want to welcome neil kerwin. this is the 22nd year of the institute. you've been at everyone and we appreciate that very much. we appreciate your support. he's going to be speaking on lobbying and the regulatory process. thank you. >> thank you for that introduction. i want to especially thank him for the plug in the book. i've spoken to the class 22 times. the book is now going into its fifthb#- k edition. the classes apparently had no effect whatsoever on the sales. >> wait a minute. are you having a movie made of it? >> yeah.
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sure. yeah. we're casting it now. what jim did by way of introduction is absolutely right. this is a field of study that, except for students of political science who are reasonably advanced in their work and frankly, the practitioner community in washington, this is an arcane =gscience. but as pat well knows as jim well knows, most of the heavy lifting when it comes to public policy formation and implementation occurs in this setting. this is not meant as any dismissal of congress but as you've heard during the course of this week, and certainly well before, congresses in the past several cycles have found it increasingly difficult to reach consensus on significant pieces of legislation. there are some notable exceptions that i'll mention in a moment. but the irony is, on those major
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pieces of legislation, along with them were enormous grants of authority along with all the controversy that goes along with it. to agencies of the federal government. now, when i wrote the book in 1994 initially, i made a statement in it that created a considerable amount of derision in my field including people who studied at congress, like professor therber, for example, who thought at the time that the entire universe revolved around capitol hill. and i think in large part, in a city like this that's understandable. but what i said at the outset based on research that led me to write the book was that rule making has been now for almost a century the most important source of law in america. and i don't think any longer that is being serix kykyc disputed because the
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i believe, is overwhelming, both empirically and in terms of the patterns of practice we see in the advocacy communities here in washington. organized3vm you're working fast track and trade promotion? >> yeah. >> okay. you've probably picked one piece of legislation where rule making's impact is going to be limited, at least initially since so much focus is on the dynamic between the congress and the president in granting the president this extraordinary authority. you know the controversies that are surrounding it. but, if the president loses, if he doesn't get fast track capability in this, my guess is that he will turn to the processes that we're talking about today in one way or another. his famous statement, mostq6ykeyñ often associated with the immigration reform act or lack thereof but a comment that at the's made in the md&3qpast. he said i have a phone and i
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have a pen. and this is what he's talking about when he talks about a phone and a pen. not entirely, but largely. organized political interest discovered this area long before the political science community did. the first survey of work that we did for the book asked lobbying organizations publicly oriented with being privately oriented, non-profit and the like how much time and treasure they spent trying to affect the hill versus trying to affect administrative agencies. the results were stunning. even then, which is now more than 20 years ago, these respondents said they were responding as much or more time attempting to influence agencies of government as they were capitol hill. and that has only increased as the congress' ability to produce legislation has declined.
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why are they most important. volume. jim mentioned 300 pieces of legislation. >> less than. >> they didn't say how much less than but i imagine it is somewhere between 290 -- all right. and as your instructors know, some of those pieces of legislation are probably a little less than earth shattering. right? you know, wishing pat griffin happy birthday. you know. national pumpkin week. because it's really critical to acknowledge that. but of course, some of them are immensely, immensely important and impactful. rules are much the same. take 300 pieces of legislation and consider this, that in an average year, democrat or republican administration, agencies of the federal government alone will produce somewhere between 6,000 and 7,000 proposals to the final rules. the multiples are enormous. when you take a major piece of legislation like the affordable
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care act or dodd-frank, you're talking about literally setting in!-dñá á4u)jz hundreds of substantial rule making efforts. now volume alone really isn't the best measure of impact. but if you take my job now i'm the chief executive officer of a university that is now the seventh or eighth largest employer in the district of columbia. we operate with a of$600 million budget. we operate a set of hotels that we call residence halls. a set of restaurants we call dining facilities. we have air issues water quality issues. we have workplace safety issues. we purchase equipment. we deal with dozens and dozens of administrative agencies, at
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the federal, state and local level. now, if i were to ask my general counsel as a ceo of any major company might how the law pertains to something important we do let's say it is the protection of animals in biology or psychology labs. or the exposure o in an aspect of our physical plant to hazardous substances or materials. mary kenard who is our general counsel and was general counsel at other universities before she came here can give me two things to read. she can give me the united states code that applies to that area, and the code is the compilation of all the statutes written by congress. we can find in the appropriate statutes those things that apply to let's say the composition of
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rugs in classrooms. trust me you won't find much. the other sheet she can give me to read is the code of federal regulations. that code of federal regulations is very different from the united states code. it's written by agencies of the federal government, written by people who are not elected written by people who are deeply expert in how much of what kind of substance you're worried about in this rug is safe for a human being to be exposed to. and that code of federal regulations is developed in a process i'm going to talk about in a moment. and 99 times out of 100 -- maybe 100 times out of 100, mary is going to give me the code federal regulations to read and not the u.s. code. because the code of federal regulations contains the most specific statements of our rights andí q1 obligations under the
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law we're likely to get until we have an enforcement action imposed on us or we take one against somebody else. so this is the law that largely defines the quality of life in this country, and in countries well beyond our borders because of our interactions around the world. now the reason why your statute that you're working on is a bit different is because, as i understand trade promotion and fast track, congress delegates to the president the opportunity to write effectively a piece of legislation. but after he's done with that and it gets an up or down vote in the congress, the hard work that we're talking about here this morning has6?& it could be in the trade rep's office. it could be at state. it might even be in some of the domestic agencies that affect labor conditions environmental quality and the like. you know from your reading already on trade promotion, some of the opposition to it a concern that we're going to
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compromise some of our workplace safety and environmental standards. of all of those standards, every one of them -- by the way, every breath you take in this room -- has been determined in part by a regulation written in this case by the environmental protection agency. so that's why we're here%-áñ this morning. then finally, the way i would have you understand this is never, ever underestimate the importance of a statute. the statute has huge framing authority. everything an agency does by way of rule making has to be authorized in some way or form by an existing statute or one that's being written. but all the statute is capable of doing for reasons i'll get to in a minute is setting boundaries program teres within which agencies provide the details that you and i all
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need to live our lives. all right. thesewúfñ are just some examples recently that you're all aware of where rule making is really driving the bus. affordable care act. dodd-frank. it's ironic, there was a piece in yesterday's "washington post" about the failure of a republican congress to roll back the volcker rule. well, the volcker rule has a lot to do with how banks structure their portfolios of investments and the like. an aggressive rule was written by the department of treasury and other banking-related regulators. the republican congress was hoping to roll that back as we -- as the congress rolled back certain elements of derivatives regulation in the earlier congress. they failed yesterday but they're going to take another bite at it.
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harp has the ability to do with homeowners who find themselves under water with mortgages to effectively renegotiate their relationship with the lender. the immigration reform is where that great statement, i got a phone and i got a pen, came from. a president finding himself frustrated by the inability of congress to enact immigration reform and promising to do something on his own. climate change at least as the debate is currently engaged in this country, has been driven by rule making by the environmental protection agency, under a statute that was last amended 24 years ago. and then finally, every so often you'll see in the popular press a report on rule making. they are few and far between. but talking about the political sensitivity at the end of this last off-year election cycle to ensure that the president's agencies don't issue regulations
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in a way that compromise the ability of democrats to get elected. so if you read between the lines in an awful lot of contemporary american public policy is that implicit admission that this is where the action has moved to and the formal research on the topic i think has established that a long time ago. now you're going to hear everyone of theseñnñ criticisms. if you go into this line of work, there is no way you will avoid working with rule making. when you do,cú complaints about the process. almost all of which have some merit. it's an unconstitutional preemption of substantive rights in a democratic process. everyrbujut has at some point read the american constitution. right? good idea. if you haven't, you might want to catch up on it at some point.
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all right? the first thing the founders say about how we govern ourselves article 1, section 1 of the constitution says very simply the legislative power will be vested in a congress of the united states. it doesn't say a congress of the united states and the pension benefit guarantee corporation. or the federal aviation administration. or the environmental protection agency. but in point of fact most law now is written in places the founders would have found probably appalling. so the critics who say the founders say law was made by elected representatives are absolutely right. but what the founders couldn't possibly have contemplated is a society as large and as economy as complex as this one that requires constant re-adjustment of existing public policy, even
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if you're not writing anywix new law. what happened a clean water act means in
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work with. because they have found themselves over the past 30 years increasingly unable to keep pace with information as it's generated in the private sector. budgetary problems. staff issues. all the things that you've read about in other parts of your public administration literature have impacted rule making profoundly. they have increased the importance of your ability to convey information to agencies. and i mean that sincerely. not just because you want to influence it to win, but because the american public depend on the highest quality information to ensure the rules that are written are accurate and effective.aún very slow, obsolete by the time it's enforced. the federal>)l administration can put out a near-worthiness6/ñ hours. and you and i should be very pleased about that. but, the last time we measured9ppttñ
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how long it took the environmental protection agency to produce a major regulation, and a major regulation under the law is defined as any regulation that has an impact on the economy of $100 million or more in compliance cover thests each year. how long do you suppose it take the epa to write a reg like that? ten years? you're little bit high. if it was ten years, even i would give up on it. all right? >> seven? >> well it's actually half of his number. about 4 1/2 years. all right? so -- and the reasons why it takes that long we'll be talking about throughout the course of this, but it is a slow process. and you have to worry particularly as we saw in the financial crisis and aftermath of 200082008, when you're dealing with industry where the
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half-life of information is weeks or days. the ability of an agency to keep pace with that and regulate those transactions is exceedingly questionable. there's no easy answer to it. it is just simply a fact that we all need to be aware of. then finally it's an inequitiable process, like much of our public policy system. this is a process that favors well resourced, well organized interests that have easy access to their membership, easy access to the highest quality technical, scientific, and, frankly, political information that they can get their hands on. and that have developed over time bridges to agencies that they can cross every time they meet it. and many of the same principles that you've read about, talked about in class about working with members of congress and their staff apply to agency
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interactions as well. some are different. i think there are some notable differences in this that we'll talk about in a second. why it thrives and why it survives survives. congress is a limited institution. it has onlyt their processes, as you have already studied -- the process, for example, to get a trade promotion piece done is exotic. all right? but obviously once it passes, then things can move very, very quickly. but we've had a seminar in the past five to ten years of some of the arcana of congressional procedure, the ability to block the ability to put what some people feel are inappropriate riders on existing pieces of legislation. in any event even if congress
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were the essence of efficiency, the demands of the american people for public policy are limitless. i meanfy took a poll of the ten things that you'd like to see change, alter created in the public policy process just in this room, you would create an agenda for congress that would keep them busy for decades. so at some point there has to be an agenda control, there has to be a limit on how many things they can address. the processes we mentioned. but the other piece here is that there are a lot of political issues that congress simply does not want to deal with. they would prefer not to be on the record voting for certain kinds of things. and, frankly that charge has been leveled at things like trade promotion legislation as well. you can write a piece of legislation that gives the president broad authority to
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establish trade relations between us and another country, and the congress doesn't necessarily have to take responsibility for some of the details that might hurt one or another interest here in the states. that is absolutely the way many political scientists view the delegation of authority to agencies to write regulations. it's called responsibility transfer. and there's a flip side to it as well. i fly a lot in this job. i travel a great deal. i'm on airplanes more than i want to be. every element of that airplane and the flight you take and i take is regulated by the federal aviation administration. aircraft exterior interior avionics, the airspaces that we fly over and in and land in the
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pilots, flight attendants, the airports are all regulated tightly by the faa. now the faa is populated largely by engineers. some transportation specialists some public policy specialists. but when i got on an airplane and i think to myself who wrote regs that are going to essentially define this flight i have some consolation knowing it is the faa and not a subcommittee in congress. that's no great disrespect to congress. that's not what it really was created to do. but the implication of what congress does, the fact that there is literally no limit in what congress can do in most areas of american life also bring to the fore the fact that the details at some point have to be written. you have to -- at some point you
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have to decide what the appropriate design for an airplane engine is. what the proper number of hours nor a pilot to fly. what kind of materials can be used inside an airplane to prevent unnecessary death from fire. those decisions are delegated to agencies of government. presidents, like this one learn pretty quickly that executive actions are a lot more fun than working with the hill. divided government in particular elevates that perception. it doesn't always happen in the first term. it almost always happens if there is a second. and certainly very early into a presidency when a president realizes he's dealing with a re recalcitrant congress. and his alternative is to turn to a set of agencies run by men
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and women he'spbs selected who have direct accountability to him, that he'll turn to devices like rule making to get an agenda moving that can't otherwise get moved. rule making you oughtbx ñ to review. you ought to consider this as just the next step in your work after you're finished with the capitol hill. as a matter of fact you ought to be thinking about this phase of the process at the earliest stages of your work with the hill, because if you do your work with the hill right you can make your work with the agencies that follow somewhat easier and somewhat more predictable. and again, if7&dí you're fortunate enough to work with a well-resourced organization, you're going to find yourself advantaged. because you're going to find agencies, in large part that if you work with them properly with
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a degree of respect and integrity, they're going to come to depend on you for information that they, in turn, can rely on. okay. these are the things right now. as you're working in the field moving into work in the field all of these things are conditions that currently affect the use of rule making. partisanship. re-election's been with us forever. the impact of sequester and sequester-like budget constraints have profoundly affected the ability of agencies to collect and use information. those of us who have been around town a long time, pat and jim included, know that when agencies are faced wm aith a call to reduce budgets, rightly or wrongly, they tend to go to low-hanging fruit. and like it or not, low-hacknging
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fruit includes training of personnel, extramural research. and the inducement for early retirement. there are senior people who are very expensive in favor of hiring younger folks who aren't. every one of those things in their own way reduces the ability of an agency to keep pace with highly vocalxk&1 constituencies.:zr demanding some type of action. uncertainty. i mean that's just simply a fact of life that we all deal with in terms of public policy deliberations. and if you look at this administration and beyond there is a massive pent-up demand out there for action in a wide variety of areas. and right now if it's going to get done unless there is a very
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dramatic and somewhat unexpected change in the environment between congress and the presidency, much of that is going to get done in these processes we're talking about this morning. here are the four, five, six institutions that influence how rules get written. i want to make a point at the) end of this particular item that you need to be very much aware of in your work. congress starts the process by enacting legislation. the legislation, with some notable exceptions will always have two critical characteristics that create fertile ground for your work with agencies to write regs. number one, the legislation will always be incomplete. it will never answer all the
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questions nick needs to run his business. simply incapable. there's no way that the legislative process can or wants to produce policy at that level of detail. and then the second is that language can be vague. oftentimes vague language is a marker. if you were an anthropologist or archaeologist and you were digging around 300 years from now and you saw language like "in the public interest," what you were really looking at is the inability of congress to agree on the kind of direction it needs to give to an agency kind of evidence that the congress is under intense pressure from multiple contending constituencies to produce something. but their reaction was not to
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alienate everybody was to turn the hard decisions over to a third party. so congress you must work with congress in order to set these broad parameters. the president plays in rules that he decides to play in. let me tell you how. then later i'll show you some data on it. ronald reagan created--tg÷ in 1980 the most significant power over domestic public policy that any american president has created perhaps in the history of the united states. he mandated that all proposed and final rules pass through the white house before they're published in something called a federal register. now the irony here is that ronald reagan was not known -- probably still isn't -- as a guy that had a big hard, strong grip on the details of
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government. all right? he was not seen as a guy who really respected that. he was you know, known for two things. one was to get the government off america's back, and end the evil empire. well russia's russia today. you know? it's better than the soviet union was, fine. if not, that's yours to judge. but he didn't get the government off america's back. in fact, the american administration since have been pretty active when it comes to rule making because as i'll mention in a moment, rule making is not a partisan tool. inherently. democrat or inherently republican. it is a tool that can be used by any president with an agenda. ronald reagan had an agenda. every president since has had an agenda. but by this one executive order -- and executive orders that have been refined -- that
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executive order has been refined by subsequent executive orders since -- every president has issued one related to rule making, or more than one. president reagan created for every american president that followed the ability to influence american domestic public policy in ways that no president had prior to that. by requiring that rules pass through the white house he created the ability to put a presidential stamp on each one of those. now that becomes very impractical. no president's going to touch 7,000 regulations and do anything else with his life. so what president clinton did to refine reagan's executive order was to set up a process where agencies negotiate with the white house each year to determine what rules are gring to pass through the white house for review. that's what we have today. there is still a sizable number.
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the office they pass through is something called the office of information and regulatory affairs. oira. remember that. you are now part of a very select group of americans that know the place exists. all right? but it is arguably one of the most important offices in the federal government. so the president decides obviously his staff decides which rules at epa are the most important, which ones in osha which one at the trade rep, which one at the pension benefit guarantee corporation. and by implication, what he's right to change thosefy fyif i don't lik[@zxt i'm going to show you some data in a minute that indicate that is not anóñ empty threat. every place that imposes -- everything that imposes a requirement on an agency when
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rule making occurs is an opportunity for you tod influence that an interest you're representing. that's how you have to see it. and this is a big one. if you're fortunate enough tomml÷ have one of your rules selected by the president, and if you're able to get a hearing at the white house. the court system i'm not going to spend a great deal of time s 6(t&háhp &hc% on. challenges to rules in court are very common. they are typically not the kind of work you're going to do unless you go back on to law school. they're argued in federal courts. federal courts are populated by federal judges. federal judges have lifetime appointments. removing a federal judge is a lot more difficult than let's say, an impacted wisdom tooth. it takes an impeachment proceeding just like it would be to impeach the president of the united states. last time we successfully removed a federal judge from office he had been in jail for four years.
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i wouldn't call it an effective constraint. right? so let's not go there. let's go right down to press and media. except for the highly specialized old newsletter and now blog communities, rule making -- there is no function of government as important treated it less often or less wellá70 f1 o i mean on rare occasions you see some of the national newspapers with a story here and there. but it is really unusual. the critical nexus is between agencies and interest groups. it's grown more and more important over time. it's influenced by all of these other characters in ways i'll talk about in a agencies are the place where the rules get written. interest groups are the people that bring vital information to that process. so your job as a public advocate, as a lobbyist, is to
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ensure your group or organization has the substance and the strategy to get the information you have to the right people at the right time. sound familiar? but it's crucial. anybody who walks off the hill with a sign -- or out of the white house oval office with a signed piece of legislation and says, boy, that's great, we're all finished, we won and you throw a cocktail party and you get on to the next thing? you're going to get exactly whatn!v/k] you deserve. because everybody who thinks they lost is already at the agency that's been delegated responsibility for the statute seeing what they can do to undo it. your job is to hold on to everything you've won and to minimize everything you think you lost. and we've got hundreds of
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examples of both. the famous statement by john mccain when mccain thought he had secured election reform. and then saw what the federal election commission had done rys8xith the piece of legislation he wrote with feingold. he said, i don't recognize this. this is -- i thought this was something that was going to change the way we do business. that's it's done is make matters worse. so, let's talk quicklypspcrefym about mechanics. the fundamentals of rule making are established in something called the administrative procedure act. it is almost 70 years old. it was written in 1946. immediately after the second world war. that's significant but we don't have time to go into why. all right? the administrative procedure act establishes three fundamental principles. if you understand these three principles, and read all the rest of the stuff that's written
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aboutñn84ñ rule making process and legal requirements attached to it every one of those things that follows the administrative procedure act is based in one of these three principles. principle number one. agencies are required to provide information to the public in advance of writing a regulation. that information today is written in something called the federal register. how many people have seen federal register? okay. i mean if you're reading the federal register, you've already established yourself as eight or nine standard deviations out from the normal american citizen. all right? but if you've read it, you know that almost in every day, you'll find an example of a proposed or final rule.
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now the information today that has to be:@7lúfsp contained in advance of rule making is something called a notice of proposed rule making, npr. and in it you will find the problem that the agency is attempted to deal with, or the issue. the congressional authority that gives the agency the right to go after it and what the agency is proposing to do about it. in other words you'll get a draft of the regulation itself. there's a variation on this. something called an advance notice of proposed rule makingìa4 and this is a device that agencies used basically to test the waters with people like you. it's not a formal proposal at that point. it's an idea. the agency is basically saying to the public we're thinking about writing a reg about rugs
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in classrooms. we think we have the authority to do it under this statute. we think this is the problem that has to be solved, what do you think? and what the agency can do then is to gauge both the public reaction to whether they had legal authority, and what the public already knows about the problem. so one of the many associations that represent universities might weigh in and say, there's nothing wrong with carpets in university classrooms so knock it off. we don't need anymore. or they might say, yeah, it is a really serious problem because there are very dangerous chemicals in those carpets and students sitting in classroom for any more than say 25 minutes could have serious health issues. that's not the case, by the way. hang around at least until i'm done. then you can leave.
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all right? but fundamentally that notice of proposed rule making is the official notification to the public that we're thinking about writing rules. here's what you need to know about that. if this is the first thing you've learned for your interest about a rule that affects your work, the bus has already left the station. by the way where you're likely under that bus somewhere. that means other people have almost always been in touch some way with the agency. not in anything nefarious because everybody has the right and opportunity to participate in discussions with agencies but the fact is you need to know this is happening the moment the agency is considering it. there are a variety. we can talk in the q&a about how you might go about learning those things. but simply put, that's very late in the process. by that time the agency has already made a major commitment
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to whatever it's intending to do. the second piece of information that has developed around this requirement is that agencies are required to consider certain kinds of information when they write a rule. not just telling you about it. but what kind of scientific andhaz technical information is required for them toáwrite the reg? and once again youu3s the home statute. maybe it is the occupational and it will tell the agency usually in general terms, these are the kind of data you should assemble to write the rule. principle number two is that once you're informed, the agency must give you the opportunity to participate in the process. and the minimum requirement is they allow you to write to them with written comments on the
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proposal. now that takes on great significance. because after the notice of proposed rule make something written and the agency receives their comments from you and others, they then have to write a final rule, and that also appears in the federal register. the major difference between the final rule and the proposed rule that preceded it is that the final rule contains a summary of all the comments that the agency received and what the agency did about those comments. and one easy way to challenge an agency in court is to demonstrate they ignored a significant comment that you submitted. you can actually trace from proposed rule to final the changes that were made in the rule based on public participation and those that might have been made because the
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agency decided some other way. and then principle number three. this, too, is important, although you hope you don't have to resort to this, it will happen on occasion. agencies are accountable to three institutions when they write the reg once it's written. they are responsible to the congress. they have to submit the final rule to the government accountability office and the government accountability office does a review to determine legal sufficiency. this rule is consistent with the statute that it's based on. now the accountability of the congress goes way beyond that because if the congress doesn't like the rules you've written let's say for example how the new chair of theq-u house environment committee or senate environment committee feels
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about climate change rules. they can haul you up to the hill they can order a general accounting office study or general government test test test test test pv accountability number two is to the president, and of course that's through the process i just described a moment ago of passing proposed and final rules through the white house. and then finally the mega tonnage, the stuff that really only the well-resourced organizations can do, and that's suing an agency in federal and the standards to sue an agency, i'll cover very briefly if we have the time. now, since this act was passed in 1946, congress has routinely returned not so much to what the agencies can write rules about, but how they go about writing
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them. and they've enacted a series of statutes to ensure that agencies pay particular attention to certain kinds of things. every one of these things here is a door open to you if you choose to go through it. one of them is the paperwork reduction act. in my view, and i've said this before, this is the closest thing to surrealism in legislation that you're likely to get. all right. i won't go through the entire process, but in effect agencies have to estimate in advance how much burden they're imposing on you and me when they write regulations. so it's going to take somebody at american university 35 minutes to fill out this form. now i'm not going to go into the details about how they determine how many minutes it takes to do various things.
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but the simple fact is, you have the opportunity to challenge estimates of paperwork burden. i mean it's not a great way to spend your life, but it's an opportunity. the second is the national environmental policy act. and that impacts rules that have a significant impact on the environment. if you can determine, and make a case, that a regulation, let's say being written by the department of commerce, is likely to have a significant impact on the environment, you may be successful in requiring the congress department to develop something called an environmental impact statement. and an environmental impact statement looks, in terms of process, very much like a mini rulemaking. because you have the opportunity to participate in not only the research that's being done on the impact statement, but you can comment on its quality after it's finished.6fñé
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regulatory flexibility act, and this amendment to it, provides special access to rulemaking for small and medium-sized businesses. you may represent people like that. the federal advisory committee act establishes standards for agencies that want to bring together groups of experts in the development of a rule. and then finally the data quality act, which is a constraint on agencies to ensure that they're using the best quality information available scientifically when they write a reg. once again, it's an opportunity çóh(t&háhp &hc% for you to participate in the process and to challenge the agency. now all that means, and many other procedural requirements that are out there, that we don't have time to discuss this morning, means that agencies have found conventional
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rulemaking increasing difficult to conduct. because of all the requirements they have to meet. so what you have to be on the guard for is agencies using what i call one of the mutant aspects of rulemaking. and these take a lot of different forms. dear colleague letters. letters of interpretation. policy guidance. communications from agencies to the public.! that say this is how we are interpreting existing law and policy. oftentimes these statements go right up to the edge to say you are required to meet these standards. but they're sending strong messages to the public that this is how we're going to evaluate your behavior. these typically are not subjected to all the process i k (& mentioned earlier demanded by the administrative procedural act.
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and they are now very, very common. ironically, for every danger there is in them writing something in one of these things that hurt you is the possible advantage of them writing something in one of these that hurt helps you. so the issue is once again the ability to interact effectively, legally with agencies to get to them the best possiv),ç information. let's talk tactics and what we've observed in terms of the research. advocacy starts in the congress. you have to -- you have to be cognizant of the fact that this u+hofbs legislation is being turned over to an agency.÷ we talked about these various elements before, but from here on down you can have some
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influence on where atq(q f legislation goes for 0 xñ implementation through rule making. in some cases it's very obvious. if you get legislation on climate change it's going to go to the air office in the field. but there could be ancillary activity that goes somewhere vip else. so you may have an opportunity to participate in terms of the routing. deadlines and hammers. all right. a deadline is -- a deadline is not a technical requirement. it's a political statement. anybody here from cleveland? nobody from cleveland. anyone who was from cleveland at some point? you've all heard of cleveland. yeah, you've all heard of cleveland. anybody heard of the cuyahoga river? good. in 1971 -- well, 1972, we had passage of the clean air act.
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sometimes before the passage of the clean air act, the cuyahoga river ignited. the river ignited. right. okay.&(9z-9r1 jim and pat and i, we're not chemists. right? my son is an engineer but, you know, i'm a political scientist so i can often be intimidated by big science. but it strikes me when a river ignites. right? you probably have an underlying issue with pollution and the river, right? the congress agreed and of course this was a year or two after the famous santa barbara oil spill as well. but fundamentally what occurred is they wrote the clean water act, which is a landmark piece of legislation. and by the way, if you're interested in political history, the period of late mid-60s to mid-70s is a period of immense congressional productivity in
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terms of legislation that has ;=aa had immense effect on the quality of life in the country. and the clean water act is one of them. but one of the things that congress did in the clean water act is to say that america's rivers will be swimmable and fishable and drinkable in two years. now, you have a river that's on fire, and two year later you're expecting it -- or expecting one of you to go and drink it. strikes me as an ambitious expectation. especially when i just told you #d it takes four years for the z%ñ agency to write a rule. deadlines really provide the opportunity for congress to say we are really serious about this. but in addition to, that when a >
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deadline to write regulations is7 gt missed, the congress can actually impose a standard that will be in place until the reg is written, and that can be a very burdensome standard both for the agency and for other groups. deadline for outside interests to say you're going to move fast, essentially tactically the group saying i got the information for you to move fast and if you don't use it you're going to move slow, all right. and if you don't move quickly, with or without a hammer, we all of a sudden have really significant leverage. with we can go to the hill and have them deal with you directly because you're dilatory, or frankly we can sue you for missing a deadline. and we've seen lots of examples of successful lawsuits under deadlines leading to a requirement that the agency who messed a deadline negotiating with the party bringing a suit. so all of a sudden you're in a very advantageous situation.
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the other thing we're seeing lots of examples of, i'm sure pat and jim have seen this a lot, congress is almost -- finds itself in a reversed situation with agencies. instead of agencies reacting to congress, we now see congress reacting to agencies. and they're doing it in a variety of ways trying to catch up, trying to maintain some degree of control over the bills they think they wrote. and rules are established through authorizing legislation. but appropriations bills can be used in effect to accelerate or decelerate rule making by removing funding on the one hand for a rule or increasing funding


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